In New York, the two documents that allow an individual to detail their future medical wishes are a Health Care Proxy and a Living Will. You can also combine the two into one document: in the Health Care Proxy you can both nominate and provide specific instructions to your agent.


Purpose: A Health Care Proxy allows an individual to plan their future medical decisions in the event they are incapacitated. Given the state of today’s medicine, individuals are commonly subjected to advanced life support systems and invasive medical treatments that only prolong the end-of-life care. If you have any specific wishes in regards to your end-of-life care (e.g. when and when not to resuscitate), you need to write them down properly.


Basics: The Health Care Proxy allows an individual to appoint an agent to make medical decisions on the principal’s behalf if they are unable to do so themself. In order for the Health Care Proxy to be validly executed, it must be signed and dated by a competent adult (over 18 years old), in the presence of two adult witnesses who must also sign and date the document. The nominated agent may not act as a witness to the proxy. An individual is only allowed to appoint one agent at a time, but consecutive successor agents may be appointed as well.


Specific Wishes: You can either sign a separate Living Will or you can include your specific wishes in the body of the Health Care Proxy. You can include treatments that you may want to undergo or may want withdrawn in specific situations.


Organ Donation: The Health Care Proxy may provide for individual’s wishes regarding organ and/or tissue donations and may include specific limitations.


Revocation: As long as the adult remains competent, they may revoke the Health Care Proxy. Revocation can be done either orally, in writing, or upon an execution of a subsequent Health Care Proxy. If a spouse is appointed as an agent, their appointment is automatically revoked upon legal separation or divorce.


If There is No Health Care Proxy: In the event there are no advanced directives and an individual loses capacity, New York law determines who will have authority to make medical decisions on the individual’s behalf. The Family Health Care Decisions Act provides an order of priority: Article 81 court-appointed guardian, a spouse or domestic partner, an adult child, a parent, a sibling, and lastly, a close friend. To the extent there is significant disagreement amongst family members regarding the proper treatment of an incapacitated individual, a guardianship proceeding may become necessary.


Please contact Sverdlov Law PLLC at 212-709-8112 or if you need help with setting up a proper health care proxy or if you have any other advance directive questions.